Some Issues Related to Russia's New NGO Law

On April 17, 2006, the Russian Federal Law “On Introducing Amendments to Certain Legislative Acts of the Russian Federation” (hereinafter “NGO Law”) entered into effect.

The Law amends four existing laws – the Civil Code, the Law on Public Associations, the Law on Non-commercial Organizations, and the Law on Closed Administrative Territorial Formations.2 It introduces a number of new requirements for public associations (PAs), non-commercial organizations (NCOs), and foreign nongovernmental non-commercial organizations (FNNOs). These new requirements restrict who may form an organization in the Russian Federation, expand the grounds on which registration may be denied, and enhance the supervisory powers of the state over organizations.

The major changes to the laws include the following:

Denial of Registration. The law expands the grounds upon which an organization's application to register can be denied by the registration authority, known as Rosregistration. The provisions relating to denial of registration for branches of FNNOs are of special concern: they provide that the authority may deny registration to a branch if its “goals and objectives . . . create a threat to the sovereignty, political independence, territorial integrity, national unity, unique character, cultural heritage and national interests of the Russian Federation.” The European Court of Human Rights has specifically held that it violates a country’s obligations under Article 11 of the European Convention on Human Rights to deny registration on grounds almost identical to these.

Expanded Government Supervisory Powers. The law increases the reporting burden on organizations by, among other things, requiring them to report on all funds received from foreign sources and on how these are allocated or used. In addition, the law gives the government invasive powers to interfere in the internal operations of a PA, NCO, or FNNO, including the following:

The power to summon resolutions of the organization’s governing body. The registration authority now can demand documents concerning details of an organization’s governance, including day-to-day policy decisions, supervision by the organization’s management, and oversight of finances.

The power to send representatives to an organization’s events. The law even allows the government to send a representative to all of an organization's meetings and other events, without restriction. Thus, government representatives can attend strategy meetings, board meetings, and other meetings that are strictly internal to the organization. This power will have a chilling event on the ability of organizations, especially advocacy groups, to hold such gatherings, and on the willingness of members, service recipients, and others people to attend. The provision appears to violate Article 8 of the European Convention on Human Rights, protecting the right to privacy, which prohibits authorities from arbitrarily entering private premises or interfering with people's private activities.

Supervisory powers over FNNOs. The law provides the registration authority with two additional intrusive powers over the branches, representative offices, and affiliates of FNNOs. First, the government can terminate any existing program of an FNNO's subdivision.3 The law does not set forth any criteria for when to exercise this power; it appears to be entirely discretionary. Second, the law allows the registration authority to bar an FNNO (through its branch, representative office, or affiliate) from transferring funds or other resources to recipients if necessary for the purposes of “protecting the basis of the Constitutional system, morality, health, rights and lawful interests of other persons, and with the aim of defending the country and the state security.” By conferring such broad discretion to interfere with the operations of a branch, these provisions violate Article 11.

Restrictions on who may found a PA or NCO. The law introduces a new requirement that a foreign national or stateless person must be domiciled in the Russian Federation in order to found, participate in, or join a PA or NCO. This requirement raises a number of troubling questions about whether the Russian Federation is fulfilling its obligation to protect the right to associate under international conventions to which it is a party. The European Convention on Human Rights, for example, requires a signatory to secure the rights protected by the Convention for “everyone within” its jurisdiction.

In addition, the law prohibits certain categories of persons from founding, joining, or participating in PAs or NCOs. Among these are foreign nationals whose presence in the Russian Federation is found to be “undesirable.” This designation can be conferred by certain federal agencies, each of which has complete discretion to establish criteria for making that determination.

In sum, several provisions of the law appear to be inconsistent with the Russian Federation's obligations under international agreements. This is particularly so in the case of the European Convention of Human Rights, which, under Article 11, requires a nation affirmatively to protect the right to association, and to interfere with the exercise of that right only where “necessary in a democratic society” for compelling state reasons. It will be critical to monitor implementation of the law in order to determine the extensiveness of the practical problems arising under it.

Notes

1 Natalia Bourjaily is Vice President for Newly Independent States of the International Center for Not-for-Profit Law.

2 The Civil Code of 1994, the Federal Law of the Russian Federation # 82- FZ On Public Associations of May 19, 1995 (“LPA”), the Federal Law of the Russian Federation #7-FZ On Non-commercial Organizations of January 12, 1996 (“LNCO”), and the Federal Law of the Russian Federation #327-1 On Closed Administrative Territorial Formation (“LCATF”).